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The Return of the Medical Model: Disease and the Meaning of Imprisonment from John Howard to Brown V

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The Return of the Medical Model: Disease and the Meaning of Imprisonment from John Howard to Brown V \\jciprod01\productn\H\HLC\48-1\HLC108.txt unknown Seq: 1 1-MAR-13 15:09 The Return of the Medical Model: Disease and the Meaning of Imprisonment from John Howard to Brown v. Plata Jonathan Simon1 INTRODUCTION: MEDICAL MODELS OF THE PRISON Forty years after “the medical model” — as the rehabilitative-oriented penology that dominated American correctional systems from World War II until the 1970s was widely known — began to be abandoned, Brown v. Plata2 suggests the imminent return of medicine and the problem of disease to our public imagination of the prison and our constitutional understanding of humane punishment. With its shocking portraits of prisoners afflicted with complex chronic mental and physical illnesses largely abandoned by the modern state to a chaos more reminiscent of medieval jails than modern prisons, Plata depicts a correctional system that has drifted far indeed from the old correctional medical model with its aspiration to scientifically tested penal treatments. But in Plata’s mandate that California significantly reduce its prison population in order to implement sweeping reforms in its delivery of health care, along with its exposure of the deep hold that chronic illness (both mental and physical) has on prison populations, we can forecast the emergence of a new medical model. Indeed, the historical analysis offered in this Article suggests that Plata signals the rejoining of a constitutional link (in both senses of the term) between corrections and medicine that was forged more than two centuries ago over the problem of “jail disease” — assumed to be what we now know as typhus — that regularly killed prisoners at the end of the eighteenth cen- tury. This now-largely-forgotten threat, made hugely famous at the time of the American Revolution by the writings of an Englishman, John Howard,3 highlighted the grave injustice of the state taking forcible control over a person, separating him from the care of his family and friends, and then 1 Adrian A. Kragen Professor of Law, U.C. Berkeley. The author wishes to thank Ian Haney Lopez, Laurel Fletcher, Michael Meranze, Tony Platt, Karen Tani, Franklin Zimring, and all the members of a Berkeley Law faculty retreat workshop for comments on earlier drafts, and my editors at the Harvard Civil Rights-Civil Liberties Law Review, including Chrissy Calogero, Josh Freiman, Amanda Frye, William O’Neil, Kimberly Newberry, and Ja- son Lee, for many extremely helpful suggestions. As always the author affectionately ac- knowledges ownership of all of his errors. 2 131 S. Ct. 1910 (2011). 3 For the most thorough discussion of Howard’s role in eighteenth-century prison reform, see MICHAEL IGNATIEFF, A JUST MEASURE OF PAIN: THE PENITENTIARY IN THE INDUSTRIAL REVOLUTION, 1750–1850 44–117 (1978). \\jciprod01\productn\H\HLC\48-1\HLC108.txt unknown Seq: 2 1-MAR-13 15:09 218 Harvard Civil Rights-Civil Liberties Law Review [Vol. 48 abandoning him to a known and horrific fate unrelated in any way to the magnitude of his crime, or, if not yet convicted, whether he was even guilty of it. Moreover, by linking this humanitarian anxiety about the state’s treat- ment of prisoners to the health of the general public, the publicity surround- ing “jail fever” helped upend the prevailing penal system and led directly to the birth of the modern penitentiary-style prison at the turn of the nineteenth century.4 From then until the 1980s, the American prison — and the correc- tional enterprise more broadly — was repeatedly reshaped by moments of heightened concern about disease, prisons, and the general health of the pub- lic. During these periodic transformations, contemporaneous medical ideas and procedures have been extended to correctional philosophy and ulti- mately constitutional understandings of the prison. This Article identifies three distinct “medical models”5 that followed from the irruption of medicine into the penal field with John Howard’s ac- count of jail fever (see Table 1).6 Model 1 emerged in response to the prob- lem of jail fever. The basic form of the penitentiary-style prison that 4 In Howard’s day, there was little distinction between jails and prisons. See O. F. LEWIS, THE DEVELOPMENT OF AMERICAN PRISONS AND PRISON CUSTOMS, 1776–1845 16 (1922). In- fluenced in part by Howard and other reformers, both the United States and England created specialized prisons for long-term convicted prisoners. Id. at 11–15; HENRY MAYHEW & JOHN BINNY, THE CRIMINAL PRISONS OF LONDON, AND SCENES OF PRISON LIFE 80–82 (1862). In the United States, this became institutionalized in most states by the end of the nineteenth century, with jails holding a combination of pretrial inmates and prisoners convicted of offenses and punished by a term in the jail (typically of less than a year). See Se´an McConville, Local Justice: The Jail, in THE OXFORD HISTORY OF THE PRISON: THE PRACTICE OF PUNISHMENT IN WESTERN SOCIETY 297, 298 (Norval Morris & David J. Rothman eds., 1995). Prisons, in contrast, were typically limited to convicted felons serving at least a year. See Se´an McCon- ville, The Victorian Prison: England, 1865–1965, in THE OXFORD HISTORY OF THE PRISON, supra, at 131, 132. Ironically, part of the “realignment” plan put in place by California to bring its prisons in compliance with Plata lifts the historic cap on jail sentences of a year and permits multiple-year sentences in a jail setting. CAL. PENAL CODE § 1170(h) (West 2012). This may raise Eighth Amendment challenges of its own. 5 Our periodization includes three medical models: of miasma (mid-eighteenth through mid-nineteenth centuries), infectious or “germ” models of disease (late nineteenth and twenti- eth centuries), and chronic illness (twentieth and twenty-first centuries), which draw on a simi- lar analysis of the relevant field of epidemiology. See Mervyn Susser & Ezra Susser, Choosing a Future for Epidemiology: I. Eras and Paradigms, 68 AM. J. PUB. HEALTH 668, 668–73 (1996). For penology, we break the germ model into two distinct models: one cen- tered on notions of degeneracy and associated with eugenics, and the other centered on notions of deviance. We also add a model based on pure penal incapacitation, which we call “anti- medicine,” although it could be compared to the isolation imposed for quarantine purposes on those afflicted with incurable and infectious diseases, most infamously leprosy. See MICHEL FOUCAULT, DISCIPLINE AND PUNISH 198–99 (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1977). 6 We should be clear that because the United States is a federal system composed of independent, state-operated prison systems, as well as a variety of federal ones and another distinct set of detention systems (civilian, immigration, military, war on terror), there is no “American prison” other than a rather blurry, ideal concept. Some states, like Arizona, were just adopting the third medical model at a time when advanced states, like California, were beginning the expulsion of medicine. See MONA LYNCH, SUNBELT JUSTICE: ARIZONA AND THE TRANSFORMATION OF AMERICAN PUNISHMENT 4 (2010) (providing information on Arizona and California). \\jciprod01\productn\H\HLC\48-1\HLC108.txt unknown Seq: 3 1-MAR-13 15:09 2013] The Return of the Medical Model 219 Medical Historical Exemplary Medical Penal Constitutional Penology Models Moment Disease Paradigm Expression Expression Ex Parte Model 1 Punitive Wilson Plague Lt. 18th c Jail Fever Miasma Penitentiary Discipline (1885); In re City Medley (1890) Model 2 Germ/ Big House Buck v. Bell Eugenic Lt. 19th c Degeneracy Darwinism Prisons (1927) Asylum Model 3 Williams v. Psycho- Correctional Penal Penal 20th c Deviance New York therapy Institution Welfarism Therapy (1949) Ewing v. Anti- California; Model 4 Medicine or Total Lt. 20th c Monsters Supermax Lockyer v. Quarantine “Zombie Incapacitation Andrade Medicine” (2003) Correctional Chronically Model 5 Correctional Health Brown v. 21st c Ill Hospice Geriatrics Maintenance Plata (2011) Consumers Center remains at the core of how we imagine the prison — a stack of cells sur- rounded by a well-ventilated fortress — emerged in the late eighteenth cen- tury as an extension of the dominant school of miasma medicine. This hugely influential invention placed its stamp on virtually every modern prison since, not only in the United States and England, but globally. It was followed, and extended in many respects, by two less momentous, but none- theless influential, models that reflected the revolutions in nineteenth-cen- tury medicine associated with the confirmation of the causal role of microorganisms in disease etiology (germ theory) and the theory of evolu- tion (Darwinism). Model 2, far less visible historically, arose over concerns with biological “degeneracy” in the urban population, which were directly connected to the racialized anxieties of white native Protestants over mass immigration. While this response took many legal and extralegal forms, an important component was the revitalization of the prison, now read through the lens of Social Darwinism7 and medical “germ theory”8 as a tool of eugenics. Model 3, which developed alongside Model 2 in the Progressive era, emerged as dominant after World War II based in part on the discredit- 7 ANTHONY M. PLATT, THE CHILD SAVERS: THE INVENTION OF DELINQUENCY 27–28 (3d ed. 2009). 8 Germ theory, or “pathogenic theory,” holds that many infectious diseases are caused by microorganisms, or germs (or “viruses” later), that move from a host animal to another animal. Although germ theory had been proposed as early as 1700, it remained highly con- tested until the mid- to late nineteenth century when the emerging science of microbiology largely validated it. The leading alternative explanation for disease propagation was “miasma theory,” which held that diseases arise from pollution resulting from corrupting organic matter and develop through repeated exposures of an animal to this pollution.
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